Al Qawaaid al Fiqhiyyah

Al-Qawaa'id al-Fiqhiyyah: The major comprehensive legal maxims

This class will continue the discussion of the five major universal Qawaa'id.

Basic Outline of the Quarter:

The Five Major, Universal Qawaa'id

a. Affairs are based on Intention (possibly some final points)

b. Certainty is not removed by Doubt

c. Custom is to be enforced

2013-01-13 Class Notes

Revision of the previous quarter:

- There are two levels: Qawaa’id and Dawabit.

- There are the 5 Key Qawaa’id -- we mentioned them previously.

- But in addition there are about 4000 different qawaid/dawabit.

Going back to original topic: About intentions

1. We discussed intentions in ritual acts of worship.

2. Intention in Contract Law

The issue here was that approval was a condition of the contract, but approval was an internal state; so we had to look at ways of expressing approval.

We said there were 3 categories:

1. Very clear (صريح) -- you don’t need anything else.

2. Ambiguous as to whether it is a sign of intent (كناية) -- vague, indirect, or allusive

3. No indication of intent.

Complex intention: should a contract be accepted based on its literal wording form or based on its substances (what it does or lead to).

There is a difference amongst the scholars about this topic. One example of this is بيع العينة -- where someone sells you rice for $10 and then you sell it back over time for $15. According to the Hanafis and Shafi’is this is Halal because the transactions aren’t linked. But from the Hanbali and Maliki perspectives, it is Haram.

3. Intent in personal law

With respect to marriage it falls under the general principles of contract law; but scholars (all four schools) consider it is important that it be explicit -- very clear. It has to be fully explicit for it to be. Only from category 1, not from category 2.

2013-01-20 Class Notes

Today we try to finish the Qaeda of “Umooru bi Maqasidiha”. This Qaedah links to every aspect of the deen and is very comprehensive. This maxim is also very important in relation to when we meet Allah (swt) on the day of judgement. The intention is something whose nature or essence is eternal.

But there are some very challenging aspects and problematic aspects when applied to worldly matters, especially in criminal law. E.g. in commercial law; in the Shafi’i madhab, they’ll only allow two words in fact: زواج and نكاح.

If someone says something which is Sareeh “clear” -- صريح -- and then later argues that I did not mean it then law cannot accept it. We take his clear word as his intention. What if there is coercion in the decision, then it will be dealt with differently, otherwise the clear statement is considered statement of the intent.

What about divorce? What happens if the husband says “Get out of my house and go to your mother’s place?” Is this divorce. Later on if you ask him, did he intend to divorce his wife, and he said yes. Then does this mean he said divorce? Is this case of Sareeh?

Compare and contrast it with the case of sareeh in the case of marriage contract.

Classroom discussion about unilateral versus two parties that need to consent is the difference between the case of divorce and that of marriage.

Scholars discuss the difference between marriage and divorce. Marriage makes a woman halal to you and this is a big deal. The divorce is opposite, it makes the end of the woman being halal to you. And these two are not analogous to one another and therefore they will allow kanaya in the case of divorce and they are stricter in terms of intention and sareeh in case of marriage.

There is another issue of divorce that brings up the question of niyaah. Is it permissible to divorce three times to your wife and in one sitting?

When you divorce your wife, she enter a waiting period and you can take her back, when you divorce her the second time, she again enters a waiting period and you can take her back, and when you divorce her the third time, then you cannot take her back. Three strikes and the divorce is irrevocable, you cannot take her back.

How many times have you divorced your wife, if you said “i divorce you three times.”?

At the time of the Prophet, three divorce said at one time was equivalent to one divorce. At the time of Umar, this practice was considered an abuse of the wife and three divorce said at one time was considered three divorces. All four madhab considered that the three divorces at one time is considered three divorces. Ibn Taymiyah said no, the correct opinion is that in one sitting if you say divorce three times it is still one divorce, he said the case of abuse during Umar was a punishment and not the correct shariah practice. He was attacked many times for this position on this topic. This minority opinion is correct.

Suppose he says “Anti Taliq” (you are divorced), “Anti Taliq”, “Anti Taliq”. Is this Sareeh statement three divorces or just one divorce? What is not explicit here is if the husband is stressing the divorce or is he meaning it to be three divorces. Here one needs to ask for the intent to the husband, ask him whether he meant three divorces or just one divorce. He could lie about his intention but then he will have to answer to Allah swt about his correct intention.

Fiqh madhabs will try to figure out the right madhab or the default case to determine the rulings in these matters. All of them say that this is not a proper talaq but yet enforce it as three divorces and the husband cannot take her back. This is an issue that should be taken in Usool al Fiqh, what extent do we take the rulings of the sahaba even though it was done on an exceptional basis.

In the time of Prophet (صلى الله عليه وسلم) there was only one adhan for Jumah. This was the adhan made when khateeb got to the mimbar. However, later the second Jumah adhan during the time of Uthman (ra) that someone will go the market for the first Adhan so people know time for Jumah is approaching and ask them to get ready.

Issue of coercion, jest or not being serious, intoxication and state of anger with respect to family law

If you make a clear unequivocal statement for marriage, then we hold him accountable for it, even though he said it in jest.

In another narration of this hadith, the case of freeing of slaves is also considered as a serious statement even when you said it in jest.

These are special cases that you don’t joke about. When you make a statement about it, then it is considered a serious statement and the law will hold you accountable for it, regardless of your true intention.

What about the case of statements made while you are intoxicated?

What is the difference between sleeping, under age, and being intoxicated. In general you are intoxicated due to your actions. When people are intoxicated that they can still talk and enter into transactions. What should be done about those transactions, are they valid or not? Should you hold him accountable since he is the cause of his actions?

For majority of scholars the contracts (of sales and marriage) under intoxication are not valid. Other actions (like divorce, destroying property) many Ulema will hold him responsible while being intoxicated. However this is an area where there is great difference of opinion among Ulema.

Divorce in the State of Anger

Does intention apply to divorce, for instance? Does anger affect the quality of the contract?

Say you really want a car and you end up buying it for much higher than the market price but you are upset and angry for signing the contract. Is it valid contract? Yes it is.

What about divorce? What if you say “You are divorced” and you are upset? Some people get in a state of rage where they do not know what they are seeing. Such people may even end up sometimes cursing Allah (swt) or Prophet (صلى الله عليه وسلم) even though these statements are not meant by them, but only in rage they say these statements without meaning it. According to some scholars, If you are in such a state, but there is no intention behind them at all, then that will not be a case of divorce.

Intention related to the Penal Law (Jinayah -- Crime against other people’s person or property)

Example: if you kill someone else, in the US penal code, there is involuntary manslaughter, murder in the first degree, second degree etc. The difference between all of these is related to the intention of the person who committed murder. The US law hands out different punishments based on your intention.

This is the case also with the Islamic Law.

Quran: It is not becoming of one believer to kill another believer, except in khat-ta-ah

What are the possible outcome from the shari’ah? Diyah or blood money, qisaas or retribution, expiation/kaffaarah or ta’zeer (insufficient evidence for hudood, but they point to the guilt of the individual, so the judge can make a discretionary judgement). With respect to all of this when the person meets Allah (swt), the final judgment takes place there since Allah (swt) knows all the secrets of the heart.

So how does a Qadi deal with these situations. Suppose someone struck somebody else and killed the other individual. We do not get a confession. But we have witnesses that say that someone struck another individual. Here’s the questions in the Maliki school.

1. What was the instrument (or weapon) used to strike the other individual? Malikis specify 3 families for the cases where it is clear that one individual intended to strike the other individual:

- If he used an instrument that usually leads to death e.g. a machete (a large heavy knife used especially in Latin-American countries in cutting sugarcane and clearing underbrush and as a weapon.).

- Others are not (e.g. if you hit someone with a miswak)

- Things in the middle (e.g. a golf club)

2. The circumstance (e.g. where the person was hit etc).

We look at the instrument and the circumstances. If the circumstance is as such that the intent to kill becomes clear then there is either Diyah or Qisaas. If it was accidental with no intent to strike or kill then there is no Qisaas but there can be Diyah. If there is any doubt in the case of instrument or the circumstance then the intention is assumed to be for not to kill. Allah (swt) will be the final judge for this on the day of judgment.

2013-01-27 Class Notes

InshaAllah, today we move on to the next legal maxim which is:

“اليقين لا يزول بالشك” i.e. certainty is not removed by doubt

Something which is certain cannot be overridden by what is doubtful. This maxim is applied in every field of fiqh (as stressed by Suyooti) and the issues (according to suyooti) reaches ¾ of fiqh as a whole. Al-Nawawi said that this is a principle that it is very rare that anything is outside of this principle.

Based on this maxim there are many sub-maxims related to this. Many scholars say that this maxim is a sign of the merciful aspect of the Shariah. If you come up with something which does not have any Shariah text backing it however it is causing doubt in your mind then you can go with what you know for certain and leave the doubtful matter bothering you. Every faqih must learn how to apply this maxim properly.

Is this an Usooli or a Fiqhi Qa’idah?

It is actually linked to both. There is actually a principle linked very closely to Istishab in Usul al Fiqh (استصحاب). It means continuity. It is not used much by Hanbali and Malikis but is used much by Hanafi and Shafi’i scholars. So when you say that something is Haram, then burden of proof is that it is on the individual to show that it is Haram; and unless you have evidence to the contrary, the original state of permissibility stays.

Example: Cauliflower. Were the Arabs familiar with cauliflower. Cauliflower halal or haram?

It is considered halal by istishab and it is the same as invoking the principle “certainty is not removed by doubt”. Suppose someone says that we have 6 prayers rather than 5 then burden of proof is on him. We know that law is 5 prayers a day so we continue unless we have definite evidence to show otherwise. So once we know something for certain from Shariah then even if some doubt is being caused we continue with what we know as certain from the evidences.

Say we have Law A (Riba is haram, Salat is mandatory, Hijab is mandatory etc.) then we presume that this law continues to be the law. For example, initially the Muslim women did not wear hijab until the law was revealed. Now we have the law of Hijab has been established and someone else comes and says that women do not have to wear the hijab now then we will continue with hijab and leave the burden of proof on those individual who is making the claim.

Similar issue is in science where scientists do not give up what they know of laws of science unless someone comes and shows otherwise.

This is one of the earliest qawaid that was mentioned -- Imam Shafi’i said فلا يزول اليقين بالشك. Al Karkhi (Hanafi scholar d. 340 H) said that what is confirmed with certainty cannot be removed by doubt.

Question: Is this an agreed upon principle? Al-Qarafi (Maliki) said that this is a Qa’idah that is agreed upon, and scholars from all schools make this statement; but it’s important to note that saying they all agree about this Qa’idah and how they apply the Qa’idah is not the same thing.

The Malikis have a different view on this principle; but not because they don’t accept this principle. But there is a question of how you define certainty.

Say you made wudu for Zuhr and prayed. Now when Asr comes you have certainty that you made wudu but there is some doubt in your heart that whether you broke your wudu or not. Then here one using this principle has to continue with certainty and ignore the doubt. Keep in mind that it is still permissible to make wudu, however we are saying that it is not obligatory. The Shafi, Hanafi and Hanbali say here that go with certainty and one does not have to make wudu. Malikis say that we are certain that you are obliged to pray and you must know that you are in state of taharah. Malikis define the basis different from others even though they agree with the Qaeda. Suppose you are going to the mosque, will you pray while you say to yourself that “i am not sure whether i have wudu or not”? In this case one must make wudu before praying.

Footnote: Ibn Abdul Barr mentions that the Malikis of Iraq have different view from other Malikis.

Meaning of “certainty is not removed by doubt”

There are two words here: Al Yaqeen and Al Shak; linguistically al Yaqeen is opposite of al Shak. This is not a very helpful definition. When a water which was moving, when it comes to rest and the surface of the water is still then that is considered reaching yaqeen. In much the same way, your mind is at rest and completely still and have conviction in what you have concluded; your mind is not wavering or shaking. The meaning also implies that some process was involved in reaching certainty, so maybe there was some doubt, but then eventually you came to this conclusion. The idea that it is the result of a process, we speak about the knowledge of Allah, but we never refer to yaqeen of Allah or Allah’s certainty; it goes back to that original meaning of that word.

Shak linguistically means that something became dubious and confused, individual wavered in his opinion, to cleave or stick things together i.e. when you can not distinguish the separate parts together it all becomes like one inseparable mess. So it is considered a kind of jahl or ignorance. In its root meaning, it goes back to a wavering of the heart, or a disturbance of the mind.

Different people use these words differently -- the Sufis mean different things by yaqeen -- it means unveiling when everything becomes clear. So we will adopt the position of the fuqaha.

How the Usooliyeen look at Yaqeen

They divide knowledge into different categories:

1) al Yaqeen -- Certainty -- e.g. even in the court of law there is something like ‘beyond reasonable doubt’, e.g. for criminal convictions.

2) Ghalabat al Zann غلبة الظنor Zann al rajih الظن الراجح

the preponderance of the evidence -- E.g. for civil convictions.

Everyone considers this a type of knowledge; even if you have gotten to the point of certainty.

2a) Al-Thann -- conjecture

[Sh sometimes leaves this out. Thats why category 3 is not liked by Sheikh, because it’s a broad categorization. This is not as strong as thann al-raajih but not as weak as shakk.]

3) Al-Shakk -- doubt -- if you weigh the evidences and you weigh the possibilities, you don’t have any overwhelming sign that one of them is stronger than the other.

4) Al-Thann Al-Marjooh الظن المرجوح

The marjooh is the one that the preponderance goes against it. It might have some evidence, but the preponderance of the evidence goes against it.

5) Al-Wahm الوهم

Something that is extremely weak or something that is the opposite of yaqeen.

2013-02-03 Class Notes

The problem is that thann is a difficult word for Arabic -- e.g. those who know with certainty that they will meet their lord (http://quran.com/2/46). It means something that has some indication supporting it. It is a little bit confusing in the sense that it is open to many different meanings.

Thats why category 3 is not liked by Sheikh, because it’s a broad categorization. This is not as strong as thann al-raajih but not as weak as shakk.

Shakk is where the issues are so close you can not identify which is close.

How can yaqeen and shakk be for the same thing? It’s not possible, but there are two different things, each of which has a weight.

E.g. have I prayed Thuhr? Then there is a certainty that thuhr is required of me, then I should pray thuhr.

What about thann raajih putting aside shakk? It’s possible too because fuqaha really mean both categories for 1) and 2) when they say yaqeen.

Generally, the ruling is that thann raajih is sufficient. But in some cases (e.g. the punishment of zina, or aqeedah, there may be times when yaqeen is required).

When we talk about shakk, we are talking about shakk from the perspective of the shari’ah. There is nothing of shakk or doubt in Shariah. So we talk about the individual who may be in shakk of something that he thinks he knows of Shariah, but as far as Shariah is concerned it is above doubt or shakk. Ibn al Qayyim also has said that there is nothing in Shariah which is of doubt in of itself. It is individuals who may see more than one evidence and become confused.

There are 2 contemporary scholars who gave us the summary of this Qaedah. First one is Ali al Nadwi (his dissertation on Qawaid al Fiqhiyya). According to Nadwi the main idea of the qaedah is the issue of Al-Istishaq (?), i.e. something that was known in the past is still known with yaqeen. After we were certain and then we had some doubt about it due to something else which occurred. His view of Qaedah makes it very restrictive in Shaykh Jamaal’s view. Another scholar is Yaqoob ba Hussain who has written a book on this topic. He says that it is very comprehensive concept, and it is anything which is proven by shariah proof, rational proof or the custom of the people (i.e. language) is considered yaqeen and is considered default. The shakk is anything which makes us question whether that default is true or not.

Do we ever base anything in our fiqh on shakk? The only time we do something based on shakk is to do something out of ihtiyyat (caution). For example, some scholars think that certain hadith is authentic while others differ and this is the only hadith on the topic so one can out of ihtiyyat act upon this hadith. So this hadith can act as the default and we fall on this hadith out of ihtiyyat. InshaAllah, we will bring examples of this Qaedah later in detail.

Basis for this Qaedah

Is there any basis of this in the Quran? There are number of verses in the Quran which discuss that the Thann will not help mankind against the Haqq at all.

Unquestionably, to Allah belongs whoever is in the heavens and whoever is on the earth. And those who invoke other than Allah do not [actually] follow [His] "partners." They follow not except assumption, and they are not but falsifying

Can these be applied? Since thann could not stand up against haqq, then the question is what is meant by al-thann.

If you look at tafseers, it says that the word thann here is meant something which is between yaqeen and shakk. However, Shaykh Jamaal thinks that stronger opinion is that sometimes they have evidence for their opinion and sometimes they do not. Tabari concludes that it is something that deep in their hearts they know that it is not true. They have no real evidence to follow that it is true. If we take this last interpretation then can we say that this last verse is proof for this Qaedah. Yes, since the verse is saying that having knowledge of something is not the same as what you have no knowledge of. If you have yaqeen then such ayat show that there is no room for doubt.

A stronger evidence is also from hadith. This is from Sahih al Bukhari that someone came to Prophet (صلى الله عليه وسلم) and he asked that suppose someone thinks that he has passed wind during the salat. Prophet (صلى الله عليه وسلم) said that he should not leave his prayer until he hears a sound or smells something.

The Messenger of Allah (may peace be upon him) said: If anyone of you has pain in his abdomen, but is doubtful whether or not anything has issued from him, be should not leave the mosque unless he hears a sound or perceives a smell.

The Messenger of Allah (may peace be upon him) said: When any one of you is in doubt about his prayer and he does not know how much he has prayed, three or four (rak'ahs). he should cast aside his doubt and base his prayer on what he is sure of. then perform two prostrations before giving salutations. If he has prayed five rak'ahs, they will make his prayer an even number for him, and if he has prayed exactly four, they will be humiliation for the devil.

There are couple of other ahadeeth related to salat it self. Prophet (صلى الله عليه وسلم) said that if someone has shakk in his prayer whether he has prayed 3 or 4 then he should disregard his doubt (shakk) and he should go with what he is certain about and then follow his salat with two sajdah. So it looks like the hadith is saying that one should leave the shakk and the statement looks like is general if one puts it with ayat of the Quran mentioned above.

The strongest rational argument is that say that state has not changed requires no evidence and the fact to say that state has changed requires evidence. The thing that is established does not the evidence. Next time we discuss arkan of the Qaedah and doubts concerning this Qaedah.

2013-02-10 Class Notes

“Certainty is not removed by doubt” is a good translation but is not exactly right. A better translation is that “something which you know cannot be removed by what you have doubt about”. Those who translate it the first way have not studied the Qaedah in detail, however important thing is to know the Qaedah and understand it.

Arkan and Shuroot of the Qaedah

Arkan is the essential component of a Qaedah. Some scholars take it to seven arkan but stronger opinion is that it has two arkan.

The first rukn (condition) is something that you know beforehand (either ruling or something else) and second rukn (condition) is that something comes (like a question) that comes to your mind afterwards.

There has to be some kind of conflict between knowledge beforehand and that something which came as question. The two arkan should be related to the same issue.

For example, if you know Umar is trustworthy and later question comes to mind regarding his generosity (but no doubt about his trustworthiness at all) then these are two different issues and not the same. Similarly Umar is trustworthy and a question regarding the trustworthiness of Zaid comes to mind, then these are two different issues.

Let say you have a garment which you wore for Jumah salat and there are impurities on it and now you can’t remember whether certain impurity that you found on your garment is before jumah or afterwards. Let’s say that you find a receipt from cleaner which says that you picked the clean garment from the cleaner Friday morning.

The Shia have an interesting madhab that others don’t agree about, it says that if you finish an action then you don’t worry about the effects of doubt about it afterwards.

Example of the above Shia Qaedah (Qaedah al Tajawuz): Suppose you broke wudu and you don’t have doubt about it, and now salah time comes and now you forgot about the breaking of wudu, now you prayed and then you have doubt whether you made wudu after breaking the wudu, then what should you do about it?

According to the Shia Qaedah, you don’t have to go back and perform the prayers again. The Sunni scholars say that you have to repeat this salah.

Ibn Qudamah gives an example of somebody who makes wudu and prays Dhuhr, then he breaks wudu, he makes wudu again and he prays Asr. Then he came to realize that he forgot to wipe his head in the wudu, but he doesn’t remember which wudu it was in which he forgot to wipe his head, was it before the Dhuhr or Asr prayer. What should he do in this case? Are both of his prayers are invalid or just one of the prayer is invalid?

If you have no evidence, it is just a passing thought, and you ask yourself did I wipe my head, this is waswasa, you don’t listen to it all. But if you are making wudu and for some reason that you remember that you forgot to wipe your head, and you remember it clearly. Here you know that you missed a step and have a clear recollection about it, and he tells himself that before the prayer that he will make a wudu again, but then he forgets about it. And now he does not remember whether he made the mistaken wudu before Dhuhr or Asr prayers? What should he do now?

The sunni scholars say that there is doubt about both of the prayers and you have to repeat both of prayers.

Conditions related to the application of the Qaedah.

Even if there is well known and established Qaedah, there are conditions that apply to it.

#1 You have to make sure that the arkaan and the shuroot of the Qaedah exist.

#2. You make sure that there is no text of Quran and Sunnah related to the topic or Ijma on the same topic.

#3. This Qaedah is not applied if this qaedah is contradicted by something stronger.

For example, any carrion (animal died on his own) is prohibited, so the Asl (default) ruling is of prohibition. If you have doubt about an animal if it was slaughtered or not then you must look into it before eating.

Suppose someone offers you locusts then one does not have to ask this question since one is allowed to eat them even if they are not slaughtered. Same ruling also applies to fish as does for locusts.

#4. Two rulings which are both Yaqeen and yet they are contradicting.

This is not possible unless the person is mistaken about one of them being Yaqeen. Otherwise in general it does not happen.

Suppose you go to Best Buy and you buy something and you find later it is defective. And the customer and Best Buy disagree that there it is defective. Best Buy claims there was no defect and customer says that there is. What should be done? Here both parties have yaqeen that they are right. In the old days, we will side by the seller since there was Ijab and Qabool.

Some say, caveat emptor, buyer beware and side with the merchant, while others say that the defect might be difficult to detect and side with the buyer. Since sometimes there are situations where the defect is not visible outwardly so in some opinion you side with the buyer, if the situation of defect is as such that it is not easy to detect.

Another example is, if you catch the imam at ruku, you have caught the rakah of the salah. What does it mean to catch the ruku? Suppose you are going down for ruku and the Imam is rising up from ruku, did you catch the rakah? In the different madhabs, they talk about the default case of catching the ruku. The Shafis say that the default case is that you did not catch the ruku, and Shaykh Jamaal does not know how they came to this default ruling.

So if you have doubt that you did not catch the imam, then you should complete the missed rakah and this opinion is based on a hadith.

Other related Qawaa'id

There are a number of other Qawaa'id that are related or derived from the principle of this Qaeedah that we are studying.

#1 “Certainty is not removed by doubt” - This is the Qaeedah that we are studying

It means that something that is not established or confirmed as legal obligation then it will not be confirmed by shakk. Let’s say someone says Witr is obligatory, however we do not have very strong proof of that however, we have some doubtful indications which point to Witr being obligatory so these evidences are not sufficient to prove that Witr is obligatory.

#3 The dalaalah (indication) of a text cannot oppose the explicit meaning of a text.

There is something called a clear statement of the text and then there is something called indication. For example the verse about parents which forbids saying Uff to the parents indicates that something harsher than saying of Uff is also forbidden. So in this case the preponderance clearly shows that indication is in agreement to the stated meaning of the ayah.

Let’s consider the verses related to the command to pray, the explicit meaning is that we have to establish pray and fulfill all the arkaans of the prayer. Some people come and say that what it means is that we should have a spiritual connection with Allah swt and if we have this spiritual connection then we do not have to pray. Or some say that you are praying but you do not have a spiritual connection to Allah swt. What is going to happen to the Munafiqun, they ask, they say that their prayer is meaningless. So they argue that we do not have to pray, how would you argue?

Here the explicit text is that we have to pray. They are building a straw-man argument, if somebody is not praying properly, that does not mean that we do not have to pray.

The yaqeen is that we have to establish prayer. And if somebody else comes with a counter argument, that is known as shakk, since it contradicts the express meaning of the text to establish the prayer.

So we can see that the related Qaedah #3 is related to the Qaeedah #1 that we are studying. We cannot overrule the yaqeen by the shakk.

#4 Ijtihaad is not allowed when there is a definite clear text.

Many people quote this qaeedah, here the text refers to something that is definite and clear, and not just any text.

So if the text is explicit and definitive, then there is no room for Ijtihaad. We can make ijtihaad if the text is not explicit and definite. However for the explicit and definite text, Ijtihaad should not be made regarding such rulings.

#5 If something is stated explicitly or understood explicitly, then it cannot be understood in a figurative sense.

This is related to the fiqh of human speech. Suppose a man tells his wife, you are divorced, and then later on he says that he did not mean divorce, but he meant that you are to me like my mother’s back (which is called Dhihar in fiqh). Here his statement is clear and explicitly mentions divorce, so we consider it to be divorce and not Dhihar.

Q&A

When we say nass or text, we mean what the Sahaba mean by nass. If there is some room for interpretation, then we have to make ijtihaad about it. So if the nass reaches the level of certainty then we cannot make ijtihaad.

For example, back then there were grave robbers and they used to take shroud from the people who are dead. The text is clear that one who fulfils the condition of Sariq must have the hand amputated. For the grave robber fits the definition according to some scholars so they consider the hadd to be applied. Other scholars differ, so there is no yaqeen whether grave robber is a sariq according to the definition of the verse in the Quran.

2013-02-17 Class Notes

We were discussing some of the corollaries based on the principle of Al Yaqeenu La Yazulu bi Shak.

#6. What can be done with ease cannot be dropped because of aspects which can only be done with difficulty. الميسور لا يقوم بالمعصور

Example: your knee is damaged and means that you can’t make sujood. Does that mean you should sit for the whole prayer. The answer is no since once can perform ruku and qiyam. The most direct evidence is based on the hadith in which Prophet (صلى الله عليه وسلم) said that do what I order you to do, then do them to the best of your ability.

Abu Hurairah (May Allah be pleased with him) reported:

The Prophet () said, "Do not ask me unnecessarily about the details of the things which I do not mention to you. Verily, the people before you were doomed because they were used to putting many questions to their Prophets and had differences about their Prophets. Refrain from what I forbid you and do what I command you to the best of your ability and capacity".

#7. In expected and possible prohibition has no effect on the present permissibility of something.

Yaqeen here under current circumstances it is halal and possibility that in future it may not be halal is a kind of shakk.

Suppose someone gets married but the consummation will be a while later and Mahr is obligatory due to the Aqd, and say man hands over the mahr to the woman. Now can the woman consume or utilize this Mahr? Does the Mahr become obligatory of the Aqd? Yes it does. She has the mahr and it is in her possession.

Could the couple get divorced before the consummation of marriage? Yes it is possible. But this mahr is her property. But the possibility of divorce is shakk and her right to Mahr is the yaqeen. Based on this Qaedah, yes she can utilize all the mahr since the divorce is a future possibility while Aqd is the certainty right now.

Let us say you have 30 days to return an item in the US. Can you within those 30 days of your right to return the item, go ahead and sell it. Here you will allow yourself the right to sell it, because it is your right to do so, even though you could return the item to the store also in the same period. Because of the application of the principle that the shakk of you returning an item and no longer being your property does not overrule the right to sell the item which is already in your possession.

#8. The ruling is based on what is the default or normal case and the rulings are not based on exceptions. (Exceptions are like shakk and you do not base your rulings on them.)

For example, statisticians do not based their conclusions on the outliers. Similarly, in fiqh, one does not base the rulings on the exceptions to the rule.

Footnote: These related principles that we are discussing are like lemmas or corollaries in mathematics. Some of them have their own evidence or their own specific application.

#9: Something is presumed to continue in its original state until shown otherwise.

Another related Qa’edah is: الأصل بقاء ما كان على ما كان -- the burden of proof is to show there has been some change. Example: if someone is considered to be the owner of something then he is the owner unless shown otherwise.

#10. If something which was harmful in the past does not have the right to continue to use it

There is an important exception to the Qa’eda #9 is the following famous Qa’eda -- الضرر لا يكون قديما. If something which was harmful in the past then it does not have the right to continue to use it.

Example is some of the pesticides (e.g. agent orange) were found to be very harmful. So here something which cannot continue since now it is known that it is harmful even if previously it was considered useful.

Footnote: Classroom discussion about the original rulings of everything in Jannah is permissible except the ruling to stay away from a specific tree for Prophet Adam (صلى الله عليه وسلم). But we are not in Jannah anymore.

If someone were to offer you halal elephant meat. Footnote: Somebody mentioned halal horse meat, Sh mentioned that we have some texts about horse meat and let us stay away from it. There was also a finding that even halal meat had some pork in it, but again we are not discussing this either. The side discussions are also very enlightening ....

Default ruling about permissibility to eat that is not known to be consumed during the time of the Prophet

So is there a general ruling for marsupials such as kangaroos, giraffes etc? Is there a general ruling for animals that there is no evidence or ruling about it. There are three opinions on this topic of the general ruling about permissibility to eat that were not known to be consumed during the time of the Prophet (صلى الله عليه وسلم).

Opinion #1 The default ruling of these items is that it is permissible. This is the majority opinion.

It is based on some of the general verses of the Qur’an: E.g. he is the one who created for you everything that is on the Earth.

Prohibited to you are dead animals, blood, the flesh of swine, and that which has been dedicated to other than Allah , and [those animals] killed by strangling or by a violent blow or by a head-long fall or by the goring of horns, and those from which a wild animal has eaten, except what you [are able to] slaughter [before its death], and those which are sacrificed on stone altars, and [prohibited is] that you seek decision through divining arrows. That is grave disobedience. This day those who disbelieve have despaired of [defeating] your religion; so fear them not, but fear Me. This day I have perfected for you your religion and completed My favor upon you and have approved for you Islam as religion. But whoever is forced by severe hunger with no inclination to sin - then indeed, Allah is Forgiving and Merciful.

Also the Hadith of the Prophet (SAWS) that says that someone who asked about something and thus it was prohibited carries a heavy burden.

Another hadith that has some weakness in it (from Dar al Qutni and Bayhaqi): Allah has obligated certain actions so do not fail to do them, and he has prohibited certain things, so do not do them, and he has remained silent about certain things, so do not ask about them.

Opinion #2: The default case is that of prohibition.

Those that say the default case is prohibition are much smaller. They quote the verse:

And do not say about what your tongues assert of untruth, "This is lawful and this is unlawful," to invent falsehood about Allah . Indeed, those who invent falsehood about Allah will not succeed.

Some people say that prohibition or permissibility is not our job but Allah’s alone and we have no right to go ahead judge a ruling about something that is permissible or prohibited without Allah’s permission. These people quote the above verse to support their opinion.

The biggest problem with the evidence is that it says do not say this is halal or this is haram. Because they are going and saying that this is haram. We know that from the time of the Prophet that in issues like this one does not ask too many questions unless Allah (swt) made the matter clear as haram or halal.

Opinion #3: Suspend judgement - Waqafite’s opinion

They say that you have to find some sign. For example, Allah swt says that today I have made permissible sound things. So they say you have to find if something is sound and then make it permissible, but if you cannot find anything sound in it or because you do not have any evidence for it, you have to suspend judgement.

Sometimes you will find questions about the permissibility of eating kangaroo meat. Some scholars use the range of the above three opinions in order to make their rulings. And that is the reason why you will find the rulings all over the place. Some scholars said that kangaroo does not have the canine teeth and other qualities of animals which are haram so they considered them halal. While others said that it is not of animals known to us as halal so they considered kangaroo haram.

Discussion about various cases of the normal or default rulings - Al Asl

Al Asl fil .... - The case of general ruling is that of permissibility to eat?

What about the permissibility of eating crickets? They are crunchy and in some cultures they eat them. In some cultures they eat maggots? As Islam spread, you find people eating all sorts of things. Can you say that all kinds of vegetables are halal? Sh is trying to get us think, is this due to the application of the Qa’edah that we are discussing or is it due to analogy or Qiyaas.

Al Asl fil - The case of general ruling is that of prohibition in matters of financial products?

Similarly the rulings about the new financial products and people applying the Qaedah that we are discussing and ruling that riba is haram and looking for evidence. So this one might be an exception to the rule.

One of the exceptions is that when it comes to sexual relationships with women. If you live in a culture that you don’t see your wife until the wedding night, so you cannot assume that she is your wife and have sexual relationship with her, unless you are certain that you are married to her. If you have doubt then you cannot have relationships with her.

In the case of matters of ibaadah, the ruling of the default case is that it has to come from Allah swt. Al Asal fil ‘ibadaat al tawqeef -- i.e. they require that there be revelation.

In some mathaahib, Al Asl fi al-luhoom al-tahreem.

Question: What about medication?

General ruling is medications are permissible. But the problem is that medicines can be harmful. So you have a conflict with the principle. But what if it was FDA (a hypothetical, unbiased FDA) approved? If this existed, then they say it is safe. What about experimental stage? Then if it looks like there is no hope for the individual and this -- perhaps -- has a sliver of hope -- then you can say perhaps there is some benefit. There is a principle of the lesser of the two evils -- أخف الضررين. So we need to look at the principles.

We will move to the next Qaedah that you are born without dhimmah or responsibility, next time.

2013-02-24 Class Notes

#12. You are born without dhimmah (responsibility)الأصل براءة الذمّة

So it says that the default case is that everyone is free from responsibility. Responsibility can be debt you owe, the contract that you are in, etc. This Qaedah is saying that one is free from responsibility such as this of legal burden.

Discussion of what it means to be born without dhimmah (legal responsibility)

We are born without any obligations, but does this mean that we are are free of the legal obligations to pray? Shaykh Jamaal is trying to get us to think and determine why this is not meant over here. So what it means is that we are free of dhimmah unless there is clear evidence or yaqeen. So the legal responsibility to pray exists due to the definite evidence, it is a yaqeen.

Footnote: You cannot say that you do not inherit any obligations, since you can inherit wealth and as a consequence you are responsible to pay zakat on it. So you can indeed inherit some legal responsibilities.

Yaqeen (certainity) can cancel another yaqeen (certainity) but shak (doubt) cannot overrule yaqeen (certainity). So the burden of proof is to show that there is definite evidence. The evidence must be strong evidence.

الأصل في الصفات أو الأمور العارضة العدم

The default case is that nothing has been changed in qualities.

Example of various default cases

#1 Women are assumed to be virgins.

If someone wants to marry a woman who has never married then the default case is that she is a virgin. If one marries her and finds she is not a virgin then this can affect the state or happiness of the marriage.

#2 New products are assumed to be unused.

Similarly if you buy something which is fungible (say a MacBook with some qualities) and presumption is that nothing is wrong with it. Then lets say you buy it and you find out that hard drive has been taken out then this is an obvious defect which requires that the salesperson should tell you that the hard drive had been taken out.

And Allah has extracted you from the wombs of your mothers not knowing a thing, and He made for you hearing and vision and intellect that perhaps you would be grateful.

What about ignorance? If it is a result of choosing not to have knowledge, then you are responsible. But if you end up in a situation without knowledge then you are not responsible. So it is different to be born without knowledge and choose to stay ignorant.

#5 Presumption of innocence

Another principle is of the presumption of innocence. For you to commit a crime is to go from default case to a new case. This commitment of the crime has to be proven and weak evidence is not sufficient to override the default state.

So one must have strong evidence to show the guilt of someone otherwise the person is always considered innocent. The hadd is not applied when there are shubuhat (some doubts), however that does not mean the person goes free. What it means that there is some crime which requires hadd punishment, however the evidence is not strong enough to prove the crime but there was plenty evidence pointing to the guilt of the person in question then the tazeer punishment will be applied. For example for the Qisas, two witnesses are needed to show the guilt. If one has seen and witnessed then still some punishment will be there.

The evidence can use any بينة -- he cannot institute the hadd but he can have evidence that shows that he still committed the murder then he can still be punished.

#6 Assume that you have not performed an action

With respect to to the actions that you perform, the basic ruling is that they have not taken place. For example if you have doubt whether you prayed or not then you must pray. Let’s say a person is regular in prayer but one day he has doubt about the action then he should pray since prayer is above all other actions. If it happens a few days later then one can say that it is Waswasah from shaitan but for a doubt which come to the mind for a recent salat then it must be taken seriously. In this case the person should pray the salat again. Apart from Waswasah, Wahm (baseless thought) is another thought which should be ignored.

How to tell Waswasah from Shak

One way to tell waswasa from shak is to think out the reasons that can point to that you made a mistake in salat (like praying 2 rather than 4 for salat al Asr). For example, you recall that in general it takes me 10 minutes to finish and I finished in 5 minutes then it is a sign that you missed 2 rakat. If no reason can be found then treat it either as Wahm or Waswasah.

In general when we use the word shak we mean it in the sense of there being a reason to doubt. If there is no reason to doubt then one is not dealing with shak.

Corollary: Shariah should be applied at all times and places

Another corollary is that the laws of the Shariah have to be applied in all places and times. If someone is going to claim that it has been abrogated then the burden of proof is on them.

Example: someone claims that some law should be abrogated, but someone claims maslaha. Then human-derived maslaha can only rise to the level of shakk.

For particularization (takhsees) of Quran and Sunnah there has to be an evidence. For example, there is hadith in Bukhari and Muslim which says that a woman cannot travel without a Mahram. Some say that the travel has to be one day, some say 2 days and some other say 3 days and some say that it is absolutely forbidden.

2013-03-03 Class Notes

Under the umbrella of the qaeda ‘Al Yaqeenu La Yazulu be shak’ we had been discussing different corollaries.

Example: Divorce -- what is its status? Should it be avoided as far as possible?

Classroom discussion, it is the foundation of society and there is strong rational basis to keep the family intact. There is a hadith that says that the most disliked action is talaaq, however this hadith is weak, otherwise it would be good evidence for avoiding it.

Evidences for why divorce should be avoided

Evidence #1 Surah Nisa which admonishes the wife and nushooz, but if she obeys you, if thing are proper between husband and wife, then you should not cause any harm to your wife.

Men are in charge of women by [right of] what Allah has given one over the other and what they spend [for maintenance] from their wealth. So righteous women are devoutly obedient, guarding in [the husband's] absence what Allah would have them guard. But those [wives] from whom you fear arrogance - [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand.

And they followed [instead] what the devils had recited during the reign of Solomon. It was not Solomon who disbelieved, but the devils disbelieved, teaching people magic and that which was revealed to the two angels at Babylon, Harut and Marut. But the two angels do not teach anyone unless they say, "We are a trial, so do not disbelieve [by practicing magic]." And [yet] they learn from them that by which they cause separation between a man and his wife. But they do not harm anyone through it except by permission of Allah . And the people learn what harms them and does not benefit them. But the Children of Israel certainly knew that whoever purchased the magic would not have in the Hereafter any share. And wretched is that for which they sold themselves, if they only knew.

Evidence #3 Hadith: If there is any woman who asks for divorce without any basis, then jannah will be forbidden for her.

Narrated Thawban: The Prophet (SAWS) said: If any woman asks her husband for divorce without some strong reason, the odour of Paradise will be forbidden to her.

Scholars say that based on these three evidences, divorce should be avoided. Then they say that divorce does not occur without certainty and they also say divorce does not occur on something that is based on shak.

Corollary: Divorce should be based on something that is certain

In the field of taharah, the default ruling about things from the earth is that of purity, unless proven otherwise. The default rulings about dead animals is that they are impure, unless proven otherwise.

If the basic ruling considering matters is that of permissibility, is this true? What about cigarettes, should the default ruling for them be of permissibility?

Edit: Sh is trying to understand the default rulings about matters and how to think about them correctly, by asking us these leading questions.

Footnote: If you notice that most of the mouth rinse products do not contain alcohol, because the alcohol used to open pores and it caused harm to smokers as many harmful items from cigarette smoking went into the pores.

Matters are divided into those that are beneficial and those that are harmful

Many scholars do not accept the principle that the origin of matters is permissibility is incomplete. Other scholars say that the original status is prohibited. They instead say:

الأصل في المنافع الحل والأصل في الضار التحريم

The original state of benefits are permissibility and the origin of harmful things is beneficial.

You have to distinguish it. You have to look at the two cases separately.

Scholars say that there is no one ruling about matters, you still have to analyze it and determine whether it is harmful or beneficial. This reasoning is followed by Razi, Zarkashi, Baydawi, a large number of scholars.

Basically you can divide things into those that are beneficial and those that are harmful

How to determine something is beneficial? Answer: Analyze it from the shariah perspective

Something beneficial means maslaha. From the shariah point of view, in essence there is maslaha that shariah has approved of and there is maslaha that shariah rejects. So we are not free to determine on our own what is maslaha, it has to be based on the shariah. It is possible for something to have a beneficial aspect but it is rejected by the shariah. It has to meet the goals of the shariah, in order for it to be considered to be maslahah.

So the first scale of what is beneficial or harmful is the Shariah itself. For example, someone may say that alcohol is good however Shariah does not agree with it. Similarly in society today for sake of freedom they allow gay marriage, pornography and marijuana etc. while Shariah does not allow these. The Shariah looks at it as beneficial from the Shariah perspectives.

Footnote: In response to a question about benefits of gambling, in the days of jahiliyyah, they used to donate from their winning to the masakeen.

What to do about matters that are neither beneficial or harmful?

If something that is neither harmful or beneficial from the shariah perspective, what should be its default ruling?

[It’s answered by the verse below]

Evidences for rulings about beneficial matters

Allah swt is describes in verse ... that describes things that are lawful are beneficial to you.

They ask you, [O Muhammad], what has been made lawful for them. Say, "Lawful for you are [all] good foods and [game caught by] what you have trained of hunting animals which you train as Allah has taught you. So eat of what they catch for you, and mention the name of Allah upon it, and fear Allah ." Indeed, Allah is swift in account.

The following verse describes the creation and how it has been made beneficial to us.

It is He who created for you all of that which is on the earth. Then He directed Himself to the heaven, [His being above all creation], and made them seven heavens, and He is Knowing of all things.

Allah swt says that in another verse that he created everything in this world for you. How is this verse used as evidence that what is beneficial is lawful for us? This is what is called Al Imtinan -- الإمتنان (i.e. how Allah swt has blessed us). So if he is referring to things that are beneficial for us and mentioning his blessings, that is an indication that it is permissible.

Evidences for ruling about harmful matters

We see in numerous places in the Quran where Allah swt speaks about things that are harmful, such as Surah Baqarah verse 233.

No person is charged with more than his capacity. No mother should be harmed through her child, and no father through his child. And upon the [father's] heir is [a duty] like that [of the father]. And if they both desire weaning through mutual consent from both of them and consultation, there is no blame upon either of them. And if you wish to have your children nursed by a substitute, there is no blame upon you as long as you give payment according to what is acceptable.

(2:282) And take witnesses when you conclude a contract. Let no scribe be harmed or any witness. For if you do so, indeed, it is [grave] disobedience in you. And fear Allah . And Allah teaches you. And Allah is Knowing of all things.

Harm is to be avoided. There should be no implementation of harm nor reciprocating harm. These verses show that something that is harmful should avoided.

It is not just the case that something that is new should be avoided.

For example when cigarettes came to the Muslim world, some scholars said it is mubaha, one scholar said it is mustahab (his ruling was based on the fact that nicotine gives energy and you are not hungry as much), while other scholars said that the smell is bad so you should avoid it before going to the masjid.

So you can see that scholars did not just fall back on the easy option of saying that something new should be considered permissible. Before you get involved into any new matter, you should try to find out if it is permissible or harmful from the perspective of the shariah.

What about coffee? There has been no discussions about its harmful aspects, just its beneficial aspects.

Discussion about moderation of consumption or involvement in any matter

What about eating fat? Is it makrooh to eat the fat of the animal? What about sugar? If you consume more of it then it is harmful. Is sugar makrooh? Similarly is salt makrooh? Again Sh is trying to get us to think about moderation.

Even things that are permissible, you should avoid extremes, since you know that extremes are harmful. If they cause harm then you should try to avoid them.

We know that the Prophet (صلى الله عليه وسلم) consumed dates, which are rich in sugar. So it is permissible to consume sugar in moderation.

Discussion about permissibility of various food items

What about eating meat of giraffes or elephants? Would you go to the default case, that they are meat like any other meat, and if there is no sign that it is harmful, then you would consider it to be permissible.

Urf is another matter, if people of a region think it is not liked, then even if you do not have any specific rulings about it, you would still avoid it, as a matter of the urf of the region.

If something new is discovered, such as sugars, then you might have to revisit the issue and consider its permissibility.

What about plants or vegetables? You have to be aware of the poisons or toxins, if there is something harmful, then it should be avoided.

What about marijuana? Should it be avoided? Anesthetics are much more dangerous than marijuana for medicinal anesthetic purposes. If there is a case of medical necessity, which is the case with many of the medicines such as morphines, then you could consume it.

What about nutmeg? It could cause intoxication if consumed in large quantities.

Conclusion about the default rulings of things

The basic ruling of things that are beneficial are considered to be permissible. And the basic ruling of things that are harmful are considered to be avoided. And the basic ruling of things that are neutral is that it should be avoided. This answers the question asked earlier.

This concludes the discussion about yaqeen, now we move to discuss Shak.

Discussion about Shak which is the second part of the principle of la yaqeen

Shak can be divided into different categories, one of them is that you might have doubt about the ruling of something.

Shak about the ruling of something

You should turn to the scholars and ask them about it. But in some cases there might not be any text for the scholars to analyze. Or you might have two texts that seem to be contradicting each other, one text implies permissibility and another implies avoiding it.

One of the classical cases mentioned in usool al fiqh classes is whether a grave robber a thief or not. For the hadd punishment, the item stolen should be valuable over a certain limit, it should belong to somebody, and it is guarded in a reasonable manner.

For example, a robber who finds an unlocked car with keys, he might be punished but not the hadd punishment.

Suppose you conclude that cigarettes are harmful and they should be avoided. But does smoking cigarettes break your fast?

Majority of scholars say that it is haram to smoke during fasting. In the Maliki madhab, they say that even smelling perfume might break your fast.

The point is that there can be shak when it comes to a ruling, such as whether inhaling smoke breaks your fast or not?

In some to these cases the two texts might seemingly contradict each other. So there are whole set of rules to remove the Shak and get to Ghalabat al Dhann or Dhann ar rajih. In case of act of worship, for example if you have shak regarding the cigarette whether it breaks your fast or not then you avoid smoking during fasting. The Usul al fiqh goes through a lot of discussion on how to remove such Shak.

With respect to ibadaat, a general consensus is that a Shak or doubt during the act of ibadah then you will respond accordingly. For example, you are praying Asr and you have doubt whether you prayed 2 or 3 then you go with what you think is the case and act accordingly. If the shak happens after the act of ‘ibaadah, and you are sure you prayed -- then you do not let that kind of shak bother you.

Sometimes the Shak may be with respect to sabab or shart

Al Sabab is cause e.g. the time of Dhuhr prayers make the Dhuhr obligatory. What if doubt about if the Dhuhr time has arrived then you cannot perform the action. Similarly about the beginning of the month of Ramadhan, before one makes niyyah to fast one has to certify that this is Ramadhan.

Similarly regarding the starting time of fasting, then the default is to err on the side of the caution since this is ibadah so it is becomes obligatory to take a stance of caution and not eat and start the fast.

2013-03-10 Class Notes

We are discussing the main qawaid, al yaqeenu la yazulu bi shak and we are now discussing shak and its related corollaries.

Corollary: No weight is to be given to dhann which has clear error in it.

لا عبرة الظن الذي بين خطأه

You will be surprised many times, that even after you point out that it is a mistake and people still hold onto the incorrect beliefs based on the mistake. You will see many scholars know that their opinion is based on dhann but they say it still supports our opinion.

Is dhann also a mistake? There are many levels of dhann, it could be thought or some evidence pointing to it, here we are saying that you find out that the dhann is based on a mistake and you should not give it any weight.

If you have two narrations of the same report which are mutually exclusive, one has to be right and the other has to be wrong, and yet you find people clinging to the faulty or mistaken report after it has been conclusively shown that it is based on a mistake.

Corollary: There is no weight to be given to a speculation or any possibility that is not built upon evidence

(لا عبرة بالإحتمال الغير الناشئ بالدليل).

When people discuss Quran or hadith and they say it is based on something or there is a possibility of this occurring, you cannot use this as evidence, you need to have conclusive and definitive evidence for the possibility. You see this happening in modern tafseers, that is they have a discussion based on possibility of something occurring without any explicit evidence for it.

You can clearly see how this corollary is based on shak, since this possibility is based purely on shak.

If you know you are in state of wudu and performed your prayers, and there is no evidence that you broke wudu, then you do not act on the basis of this shak. This is a fiqh application

Corollary: A thing that is expected is not to be considered as if it has occurred.

(المتوقع لا يجعل كالواقع)

No discussion of this corollary since it was obvious.

Corollary: Exemption (rukhas) is not to be invoked on the basis of shak

The exemption of breaking fast or shortening your prayers while travel or whether you are sick during Ramadan, if you have doubt on any of the above conditions whether you are sick or traveling etc, then you cannot invoke exemption based on a doubtful condition. So you should fast or not shorten your prayers etc.

What about the level of sickness is that to be considered? You have to define what is maridhi in the verse. There is a difference of opinion among the salaf. Some say that it has to be such a level of sickness, wherein if you fast it would cause you harm. While others say it is any level of sickness.

The sahaba differed based on their understanding of illa. And shaikh says that there is weakness in one of the views (he didn’t say which).

The definition of travelling also has some difference of opinion. So if you are not sure whether you are in the state of travel, then you should not shorten your prayers.

Question: Student asks if the water is unsafe for performing wudu, can he invoke the exemption of rukhas and perform tayammum instead? An interesting question. Scholars used to give examples for performing tayammum. One of the example was insufficient water while traveling in the desert and you needed to preserve it for drinking it, then you could perform tayammum.

Would you make wudu with radioactive water? If you believe that water will cause you harm then you can perform tayammum instead.

Corollary: If there is a doubt in the condition then it means there is also doubt in the conditioned act. (الشك في الشرط يوجب الشك في المشروط)

If you have doubt whether or not you made wudu after you performed your prayers, then you prayer is in doubt. This is a rational argument.

Conclusions from Maliki School which differ with other madhabs based on understanding of yaqeen and shak

The differences are based on what we consider yaqeen and what we consider shak. Imam Malik disagrees with other ulema and these examples are based on it. Some are not necessarily disagreement of Imam Malik but of other scholars from the Maliki school.

Example: Is divorcing your wife three times at one sitting count as a single divorce or as three divorces?

The four madhabs say it is three divorces. Suppose someone doesn’t remember if they said “I divorce you once” or “I divorce you three times.” What is the certainty here?

Certainty 1: He said it once, since that is certain. So they are still married (but with one divorce). Every one but the Malikis have this view. Since we know they were married, but we’re not sure they are divorced.

Certainty 2: The basic premise of intimate relations is prohibition. Thus since there’s doubt about whether intimate relations are permitted it should count as divorce. Imam Maalik says that a triple talaq has taken place.

Footnote: If you have doubt about how many rakahs you have prayed, then you should resort to the least number of rakah about which you have doubt.

How does Imam Malik come to the conclusion that since you have doubt about the number of divorces, then your wife is no longer permissible for you?

Imam Malik says that you have put yourself in a limbo by uttering it three times in one sitting. Imam Malik says that what is certain in this case is divorce, but what is uncertain is whether return (رجع) is permitted. Thus it counts as three divorces.

Can a husband invoke that he was in state of anger or intoxication and not of sane mind when he said divorce three times in one sitting?

Sh answered the question by saying that in my madhab, this is only one divorce, so the above question does not apply to it.

Suppose a husband says anti taliq (أَنتِ طالِق) three times, you have to ask him what he meant by it. We discussed this in a previous class.

You have to be serious about divorce, you should never utter it in a state of anger, you should try to work out the differences amongst each other and then after you have decided that you cannot reconcile, then you should state your intention to divorce and follow the correct process for the divorce.

Example: You do not remember which of your two wives you have divorced

Another example is someone with two wives. He divorces one of them and then is confused which one he divorced. What is certain over here and what is doubtful in this case? For Malikis the fact that is certain that the talaq has been pronounced and the only doubt is the identity of the divorcee. So for Maliki both are divorced.

But for the rest of the Madhaahib: he divorced neither. That is because there is doubt that either of them was divorced.

How can this occur that a person does not remember whom he divorced? Most people are not serious about divorce and mention it lightly. For example, somebody tells his son, that if you do not pass this test, then I will divorce your mother. Which is again bizarre, but does occasionally happen in the Muslim world.

In the Hanafi school, there is a concept of istihsaan. That if there are two fiqhi opinions, then one should look at questions like maqsad and maslaha.

Suppose two brothers get married to two sisters and they go on their wedding night and since they have not seen their wives, they get mixed up. What should happen in this case?

In the Hanafi madhab, based on istihsaan, we make faskh of the first marriage (there is no need to divorce) and then we marry them to new ones.

Another option: Since a lot of thought went into choosing the spouses or there might be age differences, so they could consider it to be an accident and divorce the two couples.

2013-03-17 Class Notes

Criticism of Qa’eda Al yaqeenu la yazulu bi shak

We will finish our discussion of the major qawaa'id that we are studying that certainty is not removed by doubt. We will discuss the criticisms of the qa’eda, some of the usooliyeen look at this qa’eda as a fiqhi qa’eda and do not accept it.

Abu Bakr ar Razi who is an usooli says that this qaeda is a mistake and does not accept qa’eda. Nawawi says that if doubt comes then yaqeen is no longer left, he says that when doubt enters the picture then there is no yaqeen. So these group of scholars say that this qa’eda does not exist.

However the yaqeen and shak are not exactly about the same thing here. For example, we are certain that I had wudu when I prayed Dhuhr but now I have shak whether I have wudu right now.

However Nadwi said the objection is not valid, because it comes from the same source. What happens is that the thing still has yaqeen, but the status of that thing is not valid.

Some of the schools say it is accepted in fiqh, but it is not to be used for usooli purposes. But it seems that they don’t understand this qaedah correctly.

Hanafi madhab criticism of the Qa’eda

In the Hanafi madhab there are are some furoo (branches) that contradict this qaedah. Suppose you have a garment and you are certain that one corner of it has some impurities and then you forget which corner of the garment had the impurity.

What would you do in this case? Would you wash the whole garment? Suppose you guess which corner had the impurity and they just washed only one corner and performed their prayers, what would you tell them? For the Hanafi school this action is sufficient and the person can pray in this garment.

So this Hanafi conclusion goes against this qa’eda that we are studying. This is based on the qiyas and discussion is in one of the books of Shaybani wherein he discusses what should take place when the following situation occurs during fighting. He argues that a palace is conquered and there is not a way of knowing if there are Dhimmis inside the palace. This rule of not killing Dhimmis is stopping us from killing anyone in the palace. So the shak that there are Dhimmis in the palace who are protected under the Islamic rule will stop us from fighting them. We will not discuss this scenario, let us conclude that the Hanafis have this following madhabi principle about shak.

Criticism #1: Al Yaqeenu la yazulu bi shak is not universal and hence it is not a qa’eda

The Hanafis say that this is an indication that the qaedah is not universally applicable. But the point of a qaedah is not it’s universality -- it is a majority rule.

You cannot invalidate a qaedah based on exceptions to its universality. There can be exceptions to the qa’edah.

Criticism #2:

Secondly, maybe the Hanafi opinion is incorrect.

Criticism #3 Many exceptions to this Qa’edah

Shafi’i madhab criticism of the Qa’edah

Abu Al Abbas ibn al Qaas wrote a book called talkhees, said that its universally applied except in 11 cases. A scholar came after him and added two more cases.

An example of the exception mentioned by them is the case of wiping over the socks whether one is in doubt whether the time of wiping over the socks has expired or not. For the Shafi’s if the doubt shows up then the time has ended. For resident person it is one day and for travel it is three days of allowance for wiping. So the state of allowance for wiping over the socks, one has to be certain that the wiping is still allowed. When in doubt whether the time of doubting has come to an end then one should consider it expired then one should (according to Shafi) one should remove socks and make complete wudu with washing of the feet.

According to the classroom discussion, we can work this scenario in such a way that it still adheres to the qaedah that the we are discussing.

Another example is that of impurity on your garment, the Shafis say that if you do not know which part of the garment is impure, you should wash the entire garment. And they say that this ruling goes against the qaedah, they say that we are washing the parts of the garment that are still pure. However this really depends on how you view this qaedah, it is a question of glass half full or half empty. So we can again rule out the criticism of this qaedah based on the Shafi argument about it.

Another example, say you are travelling and you are in doubt (say during night time) whether you have reached your city so do you still shorten your prayers. Here the doubt is about whether you have reached your hometown. The Shafis say that you cannot shorten your prayers or break your fast based on this uncertainty about not reaching your hometown.

You were in a state of exemption due to traveling and you are not certain whether you have reached your hometown, how can you say that you have ended the state of rukhsa or exemption because you were in state of travel.

According to one of the student the doubt could be about the original state of travel and whether the rukhsa still applies?

Remember this qaedah should be applied only when you do not have explicit ruling about the situation that you are dealing with.

Ibn al Qaas died in 335H and had a student of a student Al Qafaal Al-Shaashi (died 4?? H) wrote an important discussion of the examples that none of these constitutes a true counterexample.

(Edit: So basically none of this counter examples present a true criticism of this qaedah, since you can always have exceptions to the qa’edah and none of the counter examples present a true criticism of this qa’edah.)

Criticism #4 based on the abrogation of the Qur’an by non mutawatir hadith

This also applies to abrogation of the Quran by non mutawatir hadith. Here the Quran is what we have as yaqeen and khabar ul wahid which is what we have some shak about. First question that we need to tackle is that is the ahad hadith whether it is truly in the state of shak?

Between Quran and non-mutawattir hadith when it comes to Naskh that we are certain that this was at some point the law given by Quran and then later the hadith restricted it. So non-mutawattir hadith can be certain according to some scholars. Just for the sake of argument that certain hadith in this category are some ahadeeth which are non-definitive then these ahadeeth cannot be used for Naskh and many scholars say that as far as naskh is concerned we cannot apply such ahadeeth for naskh and the qaeda al yaqeenu la yazulu bi shak is upheld.

Are these hadith are truly in shak? No they are definitive and you can have something that is definitive overrule something else that is definitive. And hence it does not truly present a scenario where shak is overruling something that is certain or definitive.

Let’s say that the hadith is not definitive, it has some doubts, but then we do not allow such hadith to perform takhsees of the Qur’an in general. There are some scholars such as ibn Hazm do allow it but is based on their understanding of the hadith that it is definitive and there is no doubt about it.

Criticism #5 based on particularization of the Quran by specific hadith (takhsees)

Particularizing a general statement by another text, such as a general statement of the Qur’an by particular hadith. We know that maytah are forbidden to us according to the Quran, but we have hadith that some dead such as seafood is permissible for us to it.

He has only forbidden to you dead animals, blood, the flesh of swine, and that which has been dedicated to other than Allah . But whoever is forced [by necessity], neither desiring [it] nor transgressing [its limit], there is no sin upon him. Indeed, Allah is Forgiving and Merciful.

Under carion there are exception for locusts and seafood according to the hadith. And under blood we have exceptions for liver according to the hadith.

Suppose we were to say that according to some, non mutawattir hadith are dhanni and not qataee (definitive). What would you say then, since we could have dhanni hadith that are performing takhsees of the verses of the Qur’an. And let us say that some scholars who allow takhsees by dhanni sources, are they then in contradiction with the qaedah that we are studying?

There are two ways in which this argument is not a problem.

The bulk of the non Hanafi scholars say that a general statement is not definitive. Because when you use general statement, it is open to exceptions. And since general statement is not definitive, then when you use hadith to perform takhsees for it, then you can say it falls in the category of dhann performing takhsees of dhann.

Hanafis say that general statements are definitive. And hence they allow very few particularizations of general statements. They only allow definitive statements to make takhsees. According to the Hanafis the hadith of the Prophet allows consumption of dead seafood and liver, is a Mashoor hadith, and hence it is at the level of being a definitive source. And hence you have qataee is being particularized by other qatee statements.

Conclusion:

The qaedah that we are studying has survived all of the criticisms. This concludes the discussion of this qaedah and in the next quarter we will study a new qaedah which says Urf is to be implemented.

Jazakallahu khairan for helping out with the notes, see all of you in the next quarter, Insha-allah.